FAQ – Elder Law & Long Term Care Planning

/FAQ – Elder Law & Long Term Care Planning
FAQ – Elder Law & Long Term Care Planning 2017-07-20T21:20:30+00:00

If that’s really all you need, then that’s really all we’ll do. However, I believe that my value to my clients as their attorney should not be measured by the specific documents I prepare, but rather in my knowing which documents to prepare when, and in my ability to educate my clients as to how and when those documents should be used.

You may tell me, “my goal is to make sure that my children have the power to act for me when I can no longer help myself,” in which case we may develop an incapacity plan together that involves the use of documents like Durable Powers of Attorney or Health Care Advance Directives. You may tell me, “my goal is to find a way to pay for my wife’s nursing home care,” in which case we may embark together on a process of long term care planning and, as a part of that process, execute the documents appropriate to that planning. You may tell me, “my goal is to never need a nursing home,” and so we may look to different techniques and documents designed to marshal your resources in such a way as to help you stay at home, safely. You may tell me, “I want to make sure my children are provided for, after I am gone,” and so we may develop a plan together to insure that that happens. Every person is unique. Every plan is therefore unique, too. The documents are the tools to assist with the implementation of the plan.

The documents I prepare reflect my 18+ years of experience as an elder law attorney and are not the “off-the-rack” fill-in-the-blank forms of the type you would get from Office Max, or LegalZoom, or an attorney running a document mill; there are plenty of those to be found, and you generally get what you pay for. If you just want a document drawn up a la carte, I can do that for you. But you should want so much more.

Absolutely. If you cannot come to me, I will come to you.

I visit with clients throughout Palm Beach County and Broward. Sometimes even beyond.

When you call for me, you get me. When you e-mail me, I’m the one who responds (quickly).

Consistent individual attention is a luxury that some large firms unfortunately cannot afford.

Actually, LegalZoom is not a law firm. It is a non-law lawyer document preparation forms service. As such, it cannot and does not provide any legal advice (unless you separately subscribe to an expensive monthly pre-paid plan). It does not get to know you. It makes no effort to make sure the documents you are completing are the right ones for you.

LegalZoom’s “Peace of Mind Review Service” boils down to making sure that the pages of your document are numbered, that names are spelled correctly, and that dates and the other data you supply are consistent. Because it is a non-lawyer organization, it has no need to conform to bar ethics rules, it is neither licensed nor regulated by a state bar, it is not required to check for conflicts of interest, it is not required to adhere to state bar confidentiality requirements, and it does not draft documents custom to your circumstances.

Of all the documents you will sign in your lifetime, perhaps none are are important as the planning documents prepared in the course of an elder law representation. During planning, you may decide how to divide up your estate. You may direct how your children should be cared for after your passing. You may instruct your doctors how to treat you should you be terminally ill. These are not the types of instructions that should be reduced to checkboxes on a boilerplate form purchased off the shelf at Office Max. You should not reduce your end-of-life decision-making to the options provided within a pull-down menu at a virtual on-line law firm staffed by faceless attorneys you never meet. Telling your life story is important. Sitting down, face-to-face, with an attorney, is important. Sharing your experiences and feelings about how you have seen other family members and friends treated at end-of-life, and whether things went as intended for them or whether you would want something different for yourself, is important. These are not the decisions to zoom through.

The length of time it takes to qualify for Medicaid depends upon many things. Asset liquidity is a major factor – if your assets are tied up it may take longer for you than it would for someone whose assets are more liquid. Certain planning strategies take longer to implement than others. The pace at which I move will largely be determined on your need. The faster you need me to move, the faster I will go.

ICP (nursing home) Medicaid benefits are retroactive back to the first day of the month of application. Home and Community-Based Long Term Care Medicaid Waiver benefits (which help defray the cost of assisted living or care at home) are not. At present, there is a governmental waiting list for Medicaid Waiver benefits, but there is no similar waiting list for nursing home benefits.

On average, it takes anywhere from several weeks to several months to bring a client to the point of application readiness. The fastest I have ever been able to bring a client to the point of application was 48 hours, but this was atypical and involved a LOT of work for us both. The client was highly motivated, however – he came to me at the end of the month, facing a looming nursing home bill of $11,000. By moving quickly, I was able to bring about eligibility before the end of the month. As a result, instead of paying the facility $11,000, he only had to pay approximately $800.

It is not too late. Medicaid does have a five year lookback, but with proper asset protection planning assistance you will not need to worry about it.

The Florida Department of Children and Families (the agency that administers the Medicaid program) looks back at the five year period preceding application. With certain limited exceptions, they penalize any uncompensated transfers (gifts) made during that period, taking away one month of eligibility for every $8,662 gifted. But that’s exactly where long term care planning comes into play. The strategies employed by Terner Elder Law, P.L., are not viewed as gifts by Medicaid; the government sees them, but it does not penalize them. Assets can be sheltered on Day One, and application made on Day Two.

There’s no easy answer to that one, unfortunately. Above all else, I want to be fair. To be able to quote a fair price, I really need to hear more about your circumstances. I don’t want to overcharge someone who has a relatively straightforward case. At the same time, I don’t want to base the fee on an assumption that a potential client’s circumstances are uncomplicated when the reality may be otherwise.

When I quote a fee for Long Term Care Planning, I take many factors into account:

  • I look at how urgently the planning is needed – much can be done in crisis, but a client who presents with a situation requiring more urgent attention necessarily may incur a higher fee than a client who is planning in advance, because I will have to devote more time more quickly to the former.
  • I look at the family dynamics, and assess how complicated they are. If there are estranged family members, or family members with competing interests, planning can become significantly more difficult.
  • I look at the individual’s assets (not necessarily at how much the individual has, but rather at how the assets are held). Properly done, long term care planning requires careful analysis of the individual’s financial picture and the development of a plan to restructure those assets in a manner consistent with the government’s rules, to bring about benefit eligibility. If you don’t have a good grasp of what the assets are or where they are held, the planning necessarily becomes more difficult to accomplish.
  • I look at how much has to be undone or redone. Sometimes the first step in long term care planning is getting back to Square One. It is more difficult to do planning for a client who has done things which must be corrected before planning can take place.

Those factors, and more, help guide the fee determination process. By the conclusion of the consultation, after we have had the chance to talk and to learn about each other, we will both be in a better position to understand what the work is, and what a fair price for the work would be.

Sometimes, I get asked “Well, can you at least give me a ballpark? What if I pay for the consultation only to learn that there’s no way I can afford to do the planning? I will have wasted money on the consultation!” That’s a fair point. My response is this:

The consultation is not a sales pitch. Even if you decide not to go forward, I am confident that you will feel that the information and education I provide in the time we speak is well worth the fee paid. If you feel otherwise, tell me. I don’t want anyone to walk away from an initial consultation feeling like they did not get their money’s worth. If you do decide to retain me for work following the initial consultation, the fee for the initial consultation is applied in full toward that work.

As far as a ballpark? Properly done long term care planning is comprehensive, and therefore it is not inexpensive. However, given the astronomical costs associated with privately paying for long term care here in South Florida (where the average area nursing home charges around $225 per day for a semi-private room, and the average nursing home resident needs that room for more than two years), compared to the cost of care for Medicaid recipients, the vast majority of clients will find that they recoup the planning fee and that they begin experiencing a net savings very quickly indeed.

Is it moral to hire an accountant to help you with your taxes? The IRS has rules about who needs to pay the government how much, and when they need to pay it. Those tax rules are hopelessly complicated. If you don’t know them well, you may wind up paying more in taxes than you actually owe, because you may miss taking certain deductions or applying certain credits. While hiring an accountant costs money, a good accountant’s familiarity with the tax code will often save you money in the long run. If the accountant follows all of the IRS rules, and you wind up saving money as a result, was that immoral?

As Judge Learned Hand opined in Helvering v. Gregory, 69 F.2d 809, 810 (2d Cir 1934), affirmed, 293 U.S. 465 (1935).

Anyone may so arrange his affairs that his taxes shall be as low as possible; he is not bound to choose that pattern which will best pay the Treasury; there is not even a patriotic duty to increase one’s taxes.

The same argument can and should be made with regard to Medicaid planning. Medicaid planning is about understanding the government’s rules and using them to your best advantage. All of the Medicaid planning techniques I use are legal, and all of the planning done is disclosed to the government as a part of the application process. You never need to worry about what you can and cannot say to the caseworker. No offshore accounts, no cloak-and-dagger here.

Just because it’s legal doesn’t necessarily make it moral, of course. Occasionally courts are asked to rule on the morality of Medicaid planning. Here’s what one court had to say about it:

No agency of the government has any right to complain about the fact that middle-class people confronted with desperate circumstances choose voluntarily to inflict poverty upon themselves when it is the government itself which has established the rule that poverty is a prerequisite to the receipt of government assistance in defraying the costs of ruinously expensive, but absolutely essential medical treatment.

Matter of Bipin Shah v. Debuono, 694 N.Y.S. 2d 88, 257 A.D.2d 256 (N.Y. App.Div.2nd Dep’t, July 6, 1999).

Confronting the Ruinous Cost of Nursing Home Care?
Terner Elder Law, P.L. Can Help.

Do you need help paying for care so that you can afford to stay at home? Are you trying to figure out how to foot a $11,000 monthly nursing home bill? If you’ve heard that Medicaid can help, that’s true. If you’ve heard that it will take five years to qualify, that’s not. Learn how to improve your quality of life by securing the best possible long term care if and when it is needed, affordably.

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